McKenzie v. United States of America

Filing 20

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning transferring the Petitioner, Mckenzie's Second Supplemental Motion to His Request for Habeas Relief Under Title 28 U.S.C. § 2255 to the United States Court of Appeals for the Tenth Circuit pursuant to 28 U.S.C. § 1613 18 ; and, denying the Petitioner, Mckenzie's Motion for Leave to Construe His Motion to Amend His § 2255 Petition Under Rule 15(c) to a Motion for Reconsideration Under Rule 59(e) 19 . (mnb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.

No. CIV 16-0740 JB/KBM
No. CR 08-1669 JB

RICHARD MCKENZIE,
Defendant/Movant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Petitioner, Mckenzie’s Second
Supplemental Motion to His Request for Habeas Relief Under Title 28 U.S.C. § 2255, filed April
3, 2017 (CIV Doc. 18; CR Doc. 234)(“Second Supplemental Motion”); and (ii) the Petitioner,
Mckenzie’s Motion for Leave to Construe His Motion to Amend His § 2255 Petition Under Rule
15(c) to a Motion for Reconsideration Under Rule 59(e), filed April 13, 2017 (CIV Doc. 19; CR
Doc. 235)(“Motion for Leave”).

The Court declines to reconsider its prior dismissal of

Defendant/Movant Richard McKenzie’s § 2255 proceeding and dismisses his Second
Supplemental Motion as a second or successive § 2255 motion filed without the United States
Court of Appeals for the Tenth Circuit’s authorization. The Court will, however, transfer
McKenzie’s Second Supplemental Motion to the United States Court of Appeals for the Tenth
Circuit in the interests of justice.
FACTUAL AND PROCEDURAL BACKGROUND
McKenzie filed his Motion to Correct Sentence under 28 U.S.C. § 2255 on June 22,
2016. See Motion to Correct Sentence Under 28 U.S.C. § 2255, filed June 22, 2016 (CIV Doc.
1; CR Doc. 219)(“Motion to Correct”). In his Motion to Correct, McKenzie sought to have the

Court set aside his sentence under the Supreme Court of the United States’ decision in Johnson
v. United States, 135 S. Ct. 2551 (2015)(“Johnson”). See Motion to Correct at 2. McKenzie
then filed a Supplemental Motion to Correct Sentence under 28 U.S.C. § 2255, filed August 9,
2016 (CIV Doc. 6; CR Doc. 223)(“Supplemental Motion to Correct”). In his Supplemental
Motion to Correct, McKenzie claimed that the Court should apply the Johnson holding to
invalidate his sentence under U.S.S.G. §§ 4B1.1 and 4B1.2. See Supplemental Motion to
Correct at 3. As the Court’s docket reflects, counsel represented McKenzie in the proceedings
on his Motion to Correct and Supplemental Motion to Correct.
On March 6, 2017, the Supreme Court issued its ruling in Beckles v. United States, 137
S. Ct. 886 (2017)(“Beckles”). In Beckles, the Supreme Court held that the United States
Sentencing Guidelines, U.S.S.G. §§ 4B1.1 and 4B1.2, are not subject to a void-for-vagueness
challenge. See 137 S. Ct. at 897. The Honorable Karen B. Molzen, Chief United States
Magistrate Judge, entered an Order on March 9, 2017, directing the parties to address whether
the Supreme Court’s ruling in Beckles disposed of all claims in the Motion to Correct and
Supplemental Motion to Correct. See Order Lifting Stay and Directing the Parties to Confer and
File a Joint Statement in Light of Beckles, filed December 30, 2016 (CIV Doc. 14; CR
Doc. 230). The United States filed a statement on March 14, 2017, which stated: “[T]he parties
have conferred and agree that the Supreme Court’s ruling in Beckles is dispositive of all issues
raised in Defendant’s pending §2255 motion. Therefore, Defendant’s motion pursuant to 28
U.S.C. § 2255 should be dismissed with prejudice.” Proposed Joint Statement, filed March 14,
2017
(CIV Doc. 15; CR Doc. 231). The Court entered its Memorandum Opinion and Order and
Judgment dismissing the Motion to Correct and Supplemental Motion to Correct with prejudice

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on March 28, 2017. See Memorandum Opinion and Order, filed March 28, 2017 (CIV Doc. 16;
CR Doc. 232); Final Judgment, filed March 28, 2017 (CIV Doc. 17; CR Doc. 233).
McKenzie, acting pro se, filed his Second Supplemental Motion on April 3, 2017. See
Second Supplemental Motion at 1. In his Second Supplemental Motion, McKenzie sought to
amend his Motion to Correct on the grounds that his underlying controlled substance and robbery
convictions should no longer qualify as predicate offenses “under U.S.S.G. § 4B1.1 and
4B1.1(a)(b)” based on the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243
(2016)(“Mathis”). Motion to Correct at 3. On April 13, 2017, McKenzie then filed his Motion
for Leave. See Motion for Leave at 1.
LAW REGARDING RECONSIDERATION AND SUCCESSIVE § 2255 MOTIONS
The Federal Rules of Civil Procedure govern post-judgment motions. 28 U.S.C. §§ 2244,
2255 govern second or successive motions to correct a sentence. The Court will address each set
of rules in turn.
1.

Motions for Reconsideration.

Rule 59(e) of the Federal Rules of Civil Procedure governs post-judgment motions for
reconsideration, which are considered to be motions to alter or to amend the judgment. See
Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)(“Brumark
Corp.”). Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later
than 28 days after entry of judgment.” Fed. R. Civ. P. 59(e).
Grounds warranting reconsideration under rule 59(e) include: (i) an intervening change in
the controlling law; (ii) new evidence previously unavailable; and (iii) the need to correct clear
error or prevent manifest injustice.

See Brumark Corp., 57 F.3d at 948.

A motion for

reconsideration is proper where the court has clearly misapprehended the facts, a party’s

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position, or the controlling law, but is not appropriate to revisit issues already addressed in prior
filings. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
2.

Second or Successive § 2255 Motions.

Section 2255 provides that a United States Court of Appeals panel must certify a second
or successive motion in accordance with § 2244 to contain: (i) newly discovered evidence that
would be sufficient to establish by clear-and-convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or (ii) a new rule of constitutional law that
was previously unavailable and the Supreme Court made retroactive to cases on collateral
review. See 28 U.S.C. § 2255(h). Section 2244 requires that, before a second or successive
application is filed in the district court, the applicant shall move the appropriate court of appeals
for an order authorizing the district court to consider the application.

See 28 U.S.C.

§ 2244(b)(3)(A).
A district court lacks jurisdiction to consider a second or successive motion absent the
requisite authorization. When a second or successive § 2255 motion is filed in the district court
without the required authorization from a court of appeals, the district court may dismiss or may
transfer the matter to the court of appeals if it determines it is in the interest of justice to do so
under 28 U.S.C. § 1631. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008).
ANALYSIS
McKenzie requests the Court to treat his filing as a motion for reconsideration under rule
59(e). See Motion for Leave at 1. McKenzie filed his Motion for Leave within twenty-eight
days after the Court entered Final Judgment. See Motion for Leave at 1. Because McKenzie
submitted his Motion for Leave within the twenty-eight day time limit, the Court will construe

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his Motion for Leave as a timely motion to alter or amend judgment under rule 59(e) of the
Federal Rules of Civil Procedure.
In his Motion for Leave, McKenzie argues that the Court’s March 28, 2017 dismissal of
his Motion to Correct and his Supplemental Motion denied him procedural due process, because
he was not given the opportunity to either withdraw his Motion to Correct or make his claim
based on Mathis. See Motion for Leave at 2-4. In making his argument, McKenzie relies on
Castro v. United States, 540 U.S. 375 (2003)(“Castro”). Castro held that when:
a court recharacterizes a pro se litigant’s motion as a first § 2255 motion . . . the
district court must notify the pro se litigant that it intends to recharacterize the
pleading, warn the litigant that this recharacterization means that any subsequent
§ 2255 motion will be subject to the restriction on “second or successive”
motions, and provide the litigant an opportunity to withdraw the motion or to
amend it so that it contains all the § 2255 claims he believes he has.
Castro, 540 U.S. at 383.

When McKenzie filed his original Motion to Correct and his

Supplemental Motion to Correct, he was not proceeding pro se and, because his filings were
made under § 2255, the Court had no reason to recharacterize his filings. See Motion to Correct
at 1; Supplemental Motion at 1. Castro has no application to McKenzie’s filings, and does not
afford any basis for reconsideration of the Court’s dismissal of his Motion to Correct and
Supplemental Motion. See Brumark Corp., 57 F.3d at 948.
The Supreme Court’s ruling in Mathis similarly does not afford McKenzie a basis for
reconsideration of the dismissal of his § 2255 Motion and Supplemental Motion. As McKenzie
recognizes, his Mathis argument is a new argument that was not raised before entry of Final
Judgment on his Motion to Correct and Supplemental Motion. See Motion for Leave at 2-3. As
such, Mathis cannot be raised to alter or amend the Final Judgment under rule 59(e) but, instead,
must be treated as a second or successive § 2255 motion. See United States v. Vazquez, 615 F.

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App’x 900, 901 (10th Cir. 2015).
McKenzie’s request for reconsideration does not present any intervening change in the
controlling law, new evidence previously unavailable, or a need to correct clear error or prevent
manifest injustice. See Brumark Corp., 57 F.3d at 948. The Court will deny McKenzie’s
Motion for Leave.
As set out above, the Second Supplemental Motion must be treated as a second or
successive motion under 28 U.S.C. § 2244. See United States v. Vazquez, 615 F. App’x at 901.
McKenzie filed the Second Supplemental Motion without the appropriate court of appeals’ order
authorizing this Court to consider the application. See 28 U.S.C. § 2244(b)(3)(A). The Court
must either dismiss McKenzie’s Second Supplemental Motion or transfer the matter under 28
U.S.C. § 1631 to the Tenth Circuit. See In re Cline, 531 F.3d at 1252.
At this stage of the proceedings, McKenzie may proceed with a second or successive
§ 2255 motion only if he is relying on a right that the Supreme Court made retroactively
applicable to cases on collateral review. See 28 U.S.C. § 2255(f)(3). In unpublished decisions,
the Tenth Circuit has indicated that Mathis does not announce a new right made retroactively
applicable to cases on collateral review. See United States v. Taylor, No. 16-6223, 2016 WL
7093905, at *4 (10th Cir. Dec. 6, 2016)(stating that Mathis does not announce a new rule);
Sandlain v. English, No. 17-3152, 2017 WL 4479370, at *4 (10th Cir. Oct. 5, 2017). While
unpublished Tenth Circuit decisions are not binding precedent, see 10th Cir. R. 32.1(A), 28
U.S.C., the Court is skeptical that McKenzie’s successive § 2255 motion has any merit. The
Court concludes, however, that transferring McKenzie’s Second Supplemental Motion to the
Tenth Circuit is in the interests of justice, because McKenzie’s Mathis argument would be time
barred if he were forced to file a new § 2255 motion with the Tenth Circuit, because the Supreme

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Court decided Mathis more than one year ago. See 28 U.S.C. § 2255(f)(3).
IT IS ORDERED that: (i) the Petitioner, Mckenzie’s Second Supplemental Motion to
His Request for Habeas Relief Under Title 28 U.S.C. § 2255, filed April 3, 2017 (CIV Doc. 18;
CR Doc. 234) is transferred to the United States Court of Appeals for the Tenth Circuit pursuant
to 28 U.S.C. § 1613; and (ii) the Petitioner, Mckenzie’s Motion for Leave to Construe His
Motion to Amend His § 2255 Petition Under Rule 15(c) to a Motion for Reconsideration Under
Rule 59(e), filed April 13, 2017 (CIV Doc. 19; CR Doc. 235), is denied.

________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
James A. Tierney
Acting United States Attorney
Samuel A. Hurtado
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Respondent/Plaintiff
Jason Bowles
Bowles Law Firm
Albuquerque, New Mexico
Attorney for the Movant/Defendant

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